Kelvin Erhonsele: Workplace Discrimination and the Law (Y! Legal)

by Kevin Erhonsele

workplace discrimination

Discrimination often occurs when a person is treated less favourably than other people because of a protected characteristic defined by the law. Such characteristics may be disability, gender, race, religion, age or marital status. 

Prior to ‘Nigeria’s’ encounter with the western world, paid employment in the eighteenth and nineteenth centuries was virtually non-existent, what was obtainable was a reward system for skilled labour; a relationship similar to what exist today between a person and an independent contractor. Amongst the reason for the absence of paid employment was the fact that consideration for services rendered at the time was not necessarily in the form of money although cowries were in use. More so, the well-to-do among the African dignitaries relied to a large extent on slave labour. However, with the advent of the European traders and increased missionary activities, the concept of wage-earning employment in Nigeria began to evolve. The development of a legitimate trade was the final phase of private and official British efforts to create an alternative to the traffic in slaves and the colonial administration’s labour policy was simple and precise: employment was regarded as casual and impermanent, a reflection of the seasonal nature of construction and other infrastructural activities.

The impact of the English trade union and employment practice in Nigeria was remarkable as the British Trade Union became a model for its Nigerian Counterparts with attendant development of the Nigerian Labour Law, by gradual process. Now the fundamental source of Nigerian employment law is the common law, as the employment relationship is based on the common law of contract. However, the myth that a contract is a freely entered agreement between two equal bargaining partners is evidently invalid especially when it addresses employment relationship. Essentially, a contract of employment is a relationship entered into between two parties – employer and employee (or master and servant) whereby the servant agrees to serve the master and to subject to the control of the master either for a fixed term or a term of indefinite duration in return for a benefit. Over the years, there have been numerous cases of discrimination in employment often resulting from various factors. Nigerian Legislation has made several attempts to tackle this issue irrespective of the fact that there exist few anti-discrimination laws. Section 17 (3) of the 1999 Constitution of the Federal Republic of Nigeria, as amended (CFRN) provides thus:

17(3) The Sate shall direct its policy towards ensuring that-

  1. all citizens, without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment;
  2. conditions of work are just and humane, and that there are adequate facilities for leisure and for social, religious and cultural life;
  3. the health, safety and welfare of all person in employment are safeguarded and not endangered or abused;
  4. there is medical and health facilities for all persons;
  5. there is equal pay for equal work without discrimination on account of sex, or on any other ground whatsoever;
  6. Children; young persons and the aged are protected against any exploitation whatsoever, and against moral and material neglect;
  7. Provision is made for public assistance in deserving cases or other conditions of need; and
  8. The evolution and promotion of family life is encouraged.

 

Despite the fact that these provisions fall within Chapter II, (Fundamental Objectives and Directive Principles of State Policy) of the constitution, which are generally not justiciable, they operate as a mirror of social equality and ideals which our society should continuously thrive to aspire towards. Taking into consideration the significance of this provision and it’s emphasis with respect to adequate means of livelihood for all citizens without discrimination as well as equal pay for equal work without discrimination, it appears that the law sought to guide against discrimination in employment, however there is need for a law to be passed embodying this principle.

Discrimination often occurs when a person is treated less favourably than other people because of a protected characteristic defined by the law. Such characteristics may be disability, gender, race, religion, age or marital status. Discrimination with regards to employment includes making decisions about recruitment, promotion or the offering of training opportunities within employment based on protected characteristics defined by the law. It is important to understand that there is no general law prohibiting discrimination. Indeed, discrimination is the essence of the task of those taking decisions about recruitment, promotion or the offering of training opportunities within employment, provided that the criteria for discrimination are proper: experience, qualifications, motivation, etc. However, Laws condemning and preventing discrimination in employment are usually found in the human rights section of legislation, described as, ‘right to freedom from discrimination in employment based on ‘protected characteristics defined by the law.’

Harassment, be it sexual or by reason of a protected characteristic, is a form of discrimination in employment. Harassment is broadly defined legally as “personal engaging in unwanted conduct related to a relevant protected characteristic or engaging in unwanted conduct of a sexual nature.” Harassment must have the effect of violating a person’s dignity and/or creating a hostile, intimidating or offensive work environment.

Discrimination in employment could also occur in the form of work place rules that appear neutral on the surface but in actuality, are disadvantageous to a targeted group. This is known as indirect discrimination. Requiring applicants to be a certain height could disproportionately exclude women and members of some ethnic groups, for example; unless the specified height is absolutely necessary to perform the particular job, this would illustrate indirect discrimination. While discrimination like affirmative action may be more morally defensible, discrimination in most cases is difficult to justify or defend. Although Nigeria has ratified the Discrimination (Employment and Occupation) Convention, 1958, it is worrisome that there are still very few legislations, jurisprudential authorities and case law relating to discrimination in Nigeria. Section 42 of the CFRN makes an attempt to guide against discrimination when it provided thus:

42(1)-

A Citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person –

a)be subjected either by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups places of origin, sex, religions or political opinions are not made subject;or

 

b)be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizen Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.

This provision though ingenious has proved to be of very limited scope especially with respect to the nature of employment obtainable in the Country today. Asides the fact that the law only extends protection to Nigerian citizens in employment without taking into consideration expatriates who may have been retained in Nigerian employment, it only protects a person against discrimination arising out of Statute or executive and administrative actions of government without considering employees in the private sector (which is a more significant employer today) with relation to discriminatory policies in the workplace.

At this junction, permit me to share a personal experience of a friend and colleague who once experienced discrimination whilst interviewing for a job. The young lady was told by a prospective employer that, although she was qualified for the position she had applied for, a male applicant would be best suited for the job as a result of the terrain. It is therefore important that we have legislations which describe the due process with regards to employment and termination of employment or grounds for termination of employment. This differentiates reasonable grounds for termination from discrimination. For example, one can be fired for breach of contract but not because of the person’s gender.

Whist discrimination in employment is condemnable; there is however what is referred to as positive discrimination especially in favour of disabled persons. Accordingly, section 6 of the Nigerians with Disability Act, 1993 provides thus;

  1. Government shall take measures to promote the employment of disabled; Accordingly;
  2. Vocation rehabilitation centres to develop and enhance the skills and potentials of persons with disability shall be established in all local government areas.
  3. Training programs shall be established to develop vocational skills.
  4. Vocational guidance and counselling shall be available to the disabled.
  5. All employers of labour shall reserve for the disabled not less than 10% of the work force.
  6. At least 10% of all fund allocation to training and personal development shall be reserved by employers of labour for the disabled.
  7. A disabled person shall not by reason only that he is such a person be subject to any disability or conditions by any employer.
  8. Private employers who employ disabled persons either as regular employees, apprentice or learner on full time basis be entitled to tax deduction of fifteen percent (15%) of all payable tax upon proof to Internal Revenue Department.

————————

Kevin Erhonsele, a graduate of Igbinedion University is a Chartered Abitrator who is an Associate in one of the Country’s Foremost Law firms. He is a growing authority in Commercial Law and Litigation

Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.

 

 

 

Leave a reply

Your email address will not be published. Required fields are marked *

cool good eh love2 cute confused notgood numb disgusting fail